How the Hamburglar outruns the food police

Public-health policy struggles to keep up with the food industry

Even if New York’s ban on supersize sodas had been successful, history suggests the restaurant industry would have found a way to skirt the public-health policies aimed at changing consumer behavior.

This week, a New York State Supreme Court justice overturned New York Mayor Michael Bloomberg’s plan to prevent restaurants, food carts, delis, sports stadiums and movie-theater concession stands from selling sugary drinks in cups larger than 16 ounces — much to the consternation of many health advocates. “The judge’s opinion failed to consider the public-health data and science that the board of health put forth,” says Jennifer Pomeranz, director of legal initiatives at The Rudd Center for Food Policy and Obesity, a research organization in New Haven, Conn. The Bloomberg administration plans to appeal the decision.

Bloomberg addresses NYC soda ban

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New York City Mayor Michael Bloomberg speaks to the press after at State Supreme Court judge invalidated the city's plan to limit serving sizes for sugary drinks. (Photo/Video: AP)

Nonetheless, some industry pros say the ban is — well — doomed. A few words from generous restaurant staff — “Would you like a refill for your eight-ounce drink, sir?” — would take the fizz out of any law prohibiting 16-ounce drinks in New York City, says Thomas Mullarkey, an analyst at Morningstar. “It’s up to consumers to make those decisions,” he says. The ban would have had “no material impact” on Coca-Cola or Pepsi or the restaurants that serve sugary drinks, he says. Before the ban was blocked, Dunkin’ Donuts told customers that they could add their own sugar and “flavor swirls” to large and extra-large beverages, a spokeswoman says.

Previous New York public-health laws appear to have had mixed success. Regulations forcing restaurant chains to put calorie counts on their menus — already enacted in New York — are expected to go nationwide later this year. But appetites not numbers often make the final decision on whether to go for McDonald’s
MCD, -0.45%
apple slices over french fries: Only one in six New Yorkers consider the calorie information, a 2011 study by the British Medical Journal found. And a study by New York University School of Medicine concluded that that calorie labeling has little effect on food purchases by teenagers or parents.

In what was another major victory for nutritionists in 2010, the San Francisco board of supervisors prohibited fast-food restaurants from including toys in fast-food meals. But even that didn’t stop the restaurants. Instead, McDonald’s charged 10 cents for a toy, donating the money to Ronald McDonald House Charities. “There’s a difference between a business giving this choice for customers and using the power of government to gently nudge us into a healthier lifestyle,” says J. Justin Wilson, senior research analyst at the nonprofit Center for Consumer Freedom, which receives funding from the food and drinks industry.

Hamburglar

But there is one not inconsequential consolation: The media coverage about sugary drinks turned into a nationwide public-education campaign. “The regulatory strategy didn’t win, but the public-health strategy did work,” says Steffie Woolhandler, professor of public health at the City University of New York. The industry has deep pockets: Restaurants spent $1 billion in advertising in the third quarter of 2012, up 14% year over year, according to Nielsen. And restaurants and bars spent $9.3 million lobbying Washington in 2012, more than double the amount spent five years ago, according to the Center for Responsive Politics, which tracks lobbying efforts.

To be fair, fast-food restaurants now offer healthier food and drinks options. Last year, Burger King unveiled “fresh offers” with strawberry and banana smoothies. Others have been less successful: Dairy Queen introduced the “Breeze” in the 1990s, a low-fat cholesterol-free frozen-yogurt vanilla drink, but it was phased out in favor of the soft-serve “Blizzard,” which has sold over 100 million to date. “Consumers are becoming more health conscious,” says Scott DeFife, head of government relations at the National Restaurant Association, “but any effort to regulate human behavior is always fraught with danger.”

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